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Roe vs. Purdue asks whether former student was too drunk to consent in 2017 rape allegation

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09/20/22 Hammond Courthouse

Nancy Roe vs. Purdue University is being held this week in Northern Indiana District Court.

HAMMOND, Indiana – A male student finished serving drinks at Acacia Fraternity house about 1 a.m.

The student, referred to in court documents as Student B, was talking to a female student, referred to as Nancy Roe. Roe had become extremely intoxicated that April 2017 night, drinking the equivalent of 18 drinks’ worth of wine and beer, according to Purdue’s Title IX investigators. Student B served some of those drinks to Roe, then 19.

Student B walked Roe back to her room in Harrison Residence Hall about an hour later and had sex with her.

While in bed, Student B created an audio recording of their conversation. He told investigators he did so because he knew she would later claim rape.

He later played that recording for his fraternity brothers, presumably to prove his innocence.

Roe filed a sexual assault report to Purdue at the end of the week, claiming she was too drunk to consent to sex. Purdue’s Title IX office investigated and found Student B innocent of sexual assault but guilty of sexual exploitation for recording without her consent.

As punishment, he was assigned a 10-page paper on sexual exploitation and the importance of consent before sex.

For making what Purdue claims is a false statement, Roe was expelled.

“I read that decision,” Roe said in her Tuesday testimony, a small pile of tissues accumulating on the table in front of her, “and it felt like my whole world was closing in on me.”

The possible gender disparity displayed in the punishments is a focal point of a five-day jury trial against Purdue. Roe, whose 2017 expulsion was later amended to a two-year suspension, brought allegations of gender discrimination and violation of Fourteenth Amendment due process in a 2018 lawsuit against Purdue as well as Vice President for Ethics and Compliance Alysa Rollock and Associate Vice Provost and Dean of Students Katie Sermersheim, both of whom were active in Roe’s investigation.

Another woman, referred to as Jane Doe, was originally part of the lawsuit because she was also expelled under unrelated but similar circumstances. Doe settled with Purdue outside of court on Aug. 31, according to the court docket.

‘The worst 12 hours of her life’

Roe said she awoke the morning after the incident in her own room, with no memory of the previous night. She learned through a series of what she called “unusual” text messages that she had a sexual encounter with Student B.

The texts contained sexually and otherwise explicit language, including Roe saying she wished they could have sex again.

She later recalled Student B putting his phone number in her phone Monday night, saving his contact as his first name and “Acacia.”

“(He) said I would be too drunk to remember his last name,” Roe said.

Scared, confused and ashamed, Roe said she agreed to Student B coming over that afternoon, intending to talk about what happened. He confirmed that they had sex the night before, and then they had sex again.

“It would be easier to kill myself if I could tell myself I cheated on (my boyfriend, because then it would be my fault),” she said when asked why they had sex a second time.

Roe’s attorney, Jeffrey Macey, described the experience as “the worst 12 hours of (Roe’s) life.”

“I feel like I blocked everything,” Roe said. “All I remember (from Tuesday afternoon) is how much it hurt. I wanted it to end. I wanted him to leave.”

Was Roe too ‘incapacitated’ to consent?

The case hinges on whether the jury believes Roe lied about being “incapacitated,” thus too drunk to consent to sex.

The Association of Title IX Administrators holds that “An incapacitated person could be stark naked, demanding sex, but if they are incapacitated at the time, and that is known or should be known to the responding party, any sexual activity that takes place is misconduct, and any factual consent that may have been expressed is IRRELEVANT.

“For example, a blacked-out person may say “yes” when asked if they want to have sex but, if incapacitated, they will not know they are saying it.”

William Kealey, one of Purdue’s attorneys, played during his opening statement the nine-minute audio recording that Student B made. In it, Roe’s voice sounds slowed and slightly delayed, and she giggles often. She more than once asks him to perform different sexual acts on her, and she asks him to stay multiple times.

Kealey and Sermersheim argued that the audio proved Roe was able to hold a conversation, and therefore was able to consent. But Macey asked the jury to consider how drunk she sounds in the recording.

“I can’t describe how it feels,” Roe said on the stand between deep breaths and sniffles when asked about listening to it.

Roe’s then-boyfriend described her that night as “very drunk.” In his report to the investigators, he told them that she was “loopy and floppy and could not sit up straight. She was black-out drunk and slurring her speech.”

“There was no way I could have consented,” Roe said. “I was too intoxicated. It wasn’t OK that it happened, and he should have known that it wasn’t OK that it happened.”

Student B told investigators that he recorded their conversation without her consent because he knew she would claim it was rape. In the recording, which was played in court Monday, Roe’s speech is slow and slurred, while Student B’s voice remains steady, absent of evidence that he was also drunk.

Still, Sermersheim maintained that Roe wasn’t “incapacitated.”

“Just because you don’t remember something doesn’t mean it’s rape,” she said.

Sermersheim defined incapacitated as being unresponsive and unable to speak, hear or move.

But Macey produced a copy of Purdue’ sexual harassment resource guide. It says “consent cannot be given based off silence, passivity or when an individual is incapacitated or otherwise prevented from giving consent.”

The guidelines define incapacitated as “a mental state in which an individual cannot make rational decisions because they lack the capacity to give consent.”

“It doesn’t say a person cannot move,” Macey said. “It doesn’t say ‘cannot make decisions.’ It says ‘cannot make rational decisions.’”

Macey said while questioning Sermersheim that Roe being incapacitated was the only disputed claim, concluding that the claim is the reason she was expelled.

But Sermersheim said being incapacitated was just one false statement she made. Macey asked what other false statements Roe made, and Sermersheim rattled off what she considered evidence for why she wasn’t incapacitated: She could walk back to her room, she could talk, she could use an elevator and more.

“But she didn’t deny all those things,” Macey said.

He again asked what other false statements Roe made, sounding frustrated, and Sermersheim gave the same answer. Macey asked a third time, but Kealey objected, saying the question had already been answered. Magistrate John Martin eventually sustained the objection after Macey tried to ask the question again, and Macey was forced to move on.

Gender discrimination?

Roe’s attorneys argue that Student B’s punishment for sexual exploitation, which is a felony, was unfair when compared to the discipline Roe received for allegedly making a false statement in her sexual assault report.

Kealey spent much of Tuesday’s cross examination challenging this assertion.

“(Sermersheim) suspended you because she believed you made false statements,” he said to Roe. “Not because you’re a woman.”

Roe was punished because she allegedly lied about the incident, but Student B lied as well, Macey said. He originally told friends Roe was throwing up to justify why he needed to spend more time with her that night. Student B later told investigators that he lied about Roe throwing up.

Despite that inconsistency in his story, Sermersheim said she found Student B to be a “credible source” but found Roe to be uncredible.

Due process questions

Roe’s lawyers alleged Tuesday that neither Sermersheim nor Rollock gave Roe due process when they expelled her from Purdue.

Roe first learned that Purdue found Student B to be innocent of sexual assault in a letter from Rollock received in mid-August of 2017. Rollock later also told Roe she would be referred to the Office of Student Rights and Responsibilities for an investigation into her decidedly false claim that she was “incapacitated.”

But Roe still had a chance to appeal.

She prepared a document for her appeal estimating her BAC level that night. Based on Purdue investigators’ findings that she consumed roughly 18 drinks of wine and beer, she estimated her BAC level was about 0.408, a potentially lethal concentration.

She also submitted a copy of the final report from the rape kit she received three days after the event.

Finally, Roe produced her then-boyfriend’s call logs from the night in question. It showed he called her 10 times that night but that she never answered, refuting Purdue’s claim that she was sober enough to answer and speak on the phone.

Rollock addressed none of those points in her response to Roe’s appeal, which upheld the decision that Roe lied and and waived Roe’s rights to an investigation with the OSRR. Instead, Rollock deferred to Sermersheim to make the final decision on punishment.

“Before you expelled (Roe),” Macey asked Sermersheim, “you did not look at the medical records she sent to Purdue?”

“I suppose not,” Sermersheim replied, with a slight smile across her face.

“Did you consult anyone on the effects that 18 drinks would have on someone (Roe’s) size?” he asked.

“No,” she replied.

Kealey countered that Roe had the opportunity to address these issues again after receiving the amended determination. The last line of the letter said Roe could further supplement her appeal by talking to Christina Wright, one of the lead investigators in Roe’s case.

“The letter notified (you) of your opportunity to address whether you knowingly made false statements,” Kealey said.

Kealey said it was irresponsible of Roe to make a report to Purdue without “looking into” what happened that night. Roe said she “blacked out” the night of the party, so she has few memories of it. Kealey displayed Facebook messages between Student B and Roe’s then-boyfriend on a screen, and he asked Roe to read portions of the messages aloud.

The messages summarized what had happened that night between Student B and Roe: Roe, being extremely intoxicated, made sexual advances toward Student B and other members of the fraternity. When Student B went upstairs to his bedroom, Roe followed him and asked him to walk her home, which he did. While inside her residence hall, Roe asked Student B to wait in the women’s bathroom while she talked to her resident assistant and got a spare key for her room. Once inside the room, the two had sex.

“Did you try to look into anything that we just read?” Kealey asked about whether she contacted any witnesses.

“No,” Roe replied between sniffles. “I didn’t want to see anyone.”

While she was dealing with the aftermath of Monday night’s party, Roe was still processing another sexual assault allegation, this one being against Ball State University, where she attended her freshman year.

“I remember blaming myself, and questioning why it happened more than once,” Roe said of her mindset after the alleged assault at Ball State. “I didn’t have any power in that situation, and I wanted to feel like I was in control of (this one).”

Roe lost about $5,000 in tuition and fees when she was suspended from Purdue in October 2017. Too embarrassed to tell her family, she stayed in her Lafayette apartment until September of the following year, when she moved across the country to attend college on the west coast. She was denied by two Indiana schools, and an admissions counselor from one told her she would never get into a Midwestern college until her Purdue suspension ended.

Originally on track to graduate in 2019, Roe’s college career was significantly delayed. She now plans to graduate at the end of this semester.

After college, Roe wants to go to law school.

“But with all this,” she said, “I’m not sure that’s gonna happen.”

The plaintiff ended it’s testimonies with Rollock and expert witness Melinda Manning, resting it’s case Wednesday afternoon.

Purdue’s counsel submitted a motion for judgement as matter of law following Wednesday’s conclusion. The motion asks the judge, rather than the jury, to make a verdict on the case, arguing that “a reasonable jury would not have a legally sufficient evidentiary basis to find (for the plaintiff).”

The motion argues that the plaintiff hasn’t provided any evidence that can prove her claims of gender discrimination or lack of due process in her expulsion.

The defendant’s witnesses, which include Student B, Wright and Roe’s R.A., to whom Roe reported the alleged assault, are expected to testify Thursday. Kealey said Tuesday he expects his case to rest Thursday evening, and closing arguments and the verdict will come Friday.

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